Supreme Court to hear constitutional challenge by widower and children over exclusion from pension scheme

The Supreme Court will begin hearing a constitutional challenge by a Co Tipperary widower and his three children on Monday, over their exclusion from the widow’s, widower’s or surviving civil partner’s contributory pension scheme.

John O’Meara is taking the case against the Minister for Social Protection over the non-availability of the pension to bereaved partners and their families where the parents were unmarried. The family is represented by Free Legal Advice Centres (Flac).

Mr O’Meara argues he applied for the payment on behalf of his family after his partner of over two-decades, Michelle Batey, died from Covid-19 in 2021. The couple had planned to marry following Ms Batey’s recovery from breast cancer in 2020. He had applied for the widower’s contributory pension after her death, and was refused as they were unmarried. He argued this was discriminatory against him and his children.

The High Court rejected this case in October 2022. Mr Justice Heslin ruled that, for reasons including “the special place of marriage in the Constitution”, the legislation underpinning the scheme was not contrary to the Constitution and he could not interfere with the apparent aim of that legislation to support and promote marriage.

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He said it was for the Oireachtas, rather than the courts, to set out who should benefit from this pension.

He also held that the payment was neither a benefit for a child nor a payment to support families with children, but rather to support a bereaved spouse where they were married to the deceased.

In 2023 the Supreme Court accepted a leapfrog appeal of the High Court’s decision on the basis that the “intended appeal raises matters of general public importance” and because “the appeal may require the court to address its past precedents relating to Article 41 [concerning the ‘family’]”. The court also noted that the “application of Article 40.1 [the Constitution’s ‘equality guarantee’] in the area of social welfare law raises difficult and important issues”.